HSE Expectations Versus Risk Assessments
In February this year the HSE issued a Safety Alert regarding the carcinogenicity of fume from mild steel welding. The Alert informs that HSE will expect all indoor welding to require the use of engineering controls “regardless of duration”. One can only assume that any indoor welding activity not accompanied by an extraction system will from now on invoke an FFI (fee for intervention) as a material breach. As health and safety professionals perhaps we are left wondering whatever happened to risk assessments.
The confusion caused by the above Alert is illustrated by the telephone call I received from a client whose manufacturing process involves the feeding of a mild steel wire into a production unit. Very occasionally the wire will break necessitating repair. This repair involves a very short welding activity of literally 5 seconds trigger time. It is unlikely that any individual would be required to make more than two such repairs in an 8-hour shift. The client was incorrectly under the impression that the law now requires the use of extraction for this work.
It would appear timely to emphasise that HSE expectations are not law. With regard to the welding Alert it would not be unreasonable for HSE to expect engineering controls “in most cases” or even “in virtually all cases”. However, the control measures should be identified in the COSHH assessment taking into account the specific circumstances of the Company.
There is no doubt that Companies need to review their welding COSHH assessments to take into account the reduction in the WEL (welding guidance on exposure) for manganese, and the classification of mild steel welding fume as carcinogenic. Furthermore, assessments which have been based upon air sampling where the sampling has been carried out using a sampling head on the lapel should also be considered invalid, as MDHS 14/4 makes it clear that this is not considered representative of the breathing zone. This sampling is best carried out using “face-level sampling” from within the visor.
The control measures required need to be considered in line with the hierarchy of control measures defined in Regulation 7. The HSE would no doubt claim that Schedule 2A of COSHH imposes an overriding requirement to “design and operate processes and activities to minimise emission, release and spread of substances hazardous to health” irrespective of the results of the assessment. However, this same schedule recognises that controls measures must “be proportionate to the health risk”. The crux of the consideration is what is deemed “reasonably practicable”.
Ultimately the final arbitrator of what is deemed “reasonably practicable” would be the courts. No doubt the prosecuting barrister would make the court aware of the guidance on the HSE website relating to this which states:
“In essence, making sure a risk has been reduced ALARP [as low as reasonably practicable) is about weighing the risk against the sacrifice needed to further reduce it. The decision is weighted in favour of health and safety because the presumption is that the duty-holder should implement the risk reduction measure. To avoid having to make this sacrifice, the duty-holder must be able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved. Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices.”
It is likely that the defending barrister would point out that this HSE guidance appears to go beyond what the law requires, with Schedule 2A requiring the control measures to be “proportionate” only . The barrister is likely to attempt to convince the court that introducing the term “grossly disproportionate” “grossly” affects the balance of the considerations. It is also worth noting that the control measures need to be proportionate to the health risk – not the hazard. If exposures are very low the health risk will not be significant, even for high hazard substances such as carcinoigens.
So where does this leave Companies? HSE expectations should be carefully considered in relation to COSHH assessments. Any challenge to these expectations must be carefully thought out with consideration to the following:
- What is the current level of exposure?
- What are the options for reducing exposures?
- Where do these options lie in relation to the COSHH hierarchy of controls?
- What reduced level of exposure is each option likely to provide?
- What is the cost of each option?
The message is do not take HSE expectations as absolute requirements. However, any challenges need to be well-thought out. Well thought out challenges are unlikely to result in prosecution with a moderation of HSE expectations being the most likely outcome.
Photo credits: Anthony Baggett www.123rf.com / kasto www.123rf.com